


Transformative Works

by Elf (Elfwreck)



Category: No Fandom
Genre: Gen, Meta, Nonfiction
Language: English
Status: Completed
Published: 2010-04-15
Updated: 2010-04-15
Packaged: 2021-02-28 19:29:16
Rating: Mature
Warnings: Creator Chose Not To Use Archive Warnings
Chapters: 1
Words: 2,693
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/23152522
Author URL: https://archiveofourown.org/users/Elfwreck/pseuds/Elf
Summary: On OTW's consideration to allow "original work" at AO3.
Kudos: 3
Collections: March Meta Matters Challenge





	Transformative Works

**Author's Note:**

> This ship has so sailed.

Much talk in the journalsphere right now, about OTW's consideration of [hosting original fic](http://transformativeworks.org/original-content-and-gray-area-fanworks). The most recent [](https://metafandom.dreamwidth.org/profile)[**metafandom**](https://metafandom.dreamwidth.org/) posts have several entries; several others weren't covered, either because they weren't as focused or were locked or maybe just weren't searchable & haven't been noticed.

Several aspects are being discussed, in the usual journalfannish way, which means rather scrambled together, with small fragments spotlighted, with occasional very abstract tangents on other topics, and sometimes meandering off into rants about copyright law or the history of grudgewanks between BNFs. (And fandom? I love you for all of that. I'm growing sick of the phrase "on the same page" at work, and I adore fandom for reminding me that we're not only not on the same page, we're not all reading the same book, and some of us are watching the movie instead. We don't need to all be thinking the same thoughts to reach some agreements about our actions.)

Anyway. I'm considering the various thises-and-thats… I don't think anyone wants the AO3 to host "original works," but I'm in the camp that would rather it did, than it limited "transformative fanworks" to those which can be easily defined. I can think of several types of fanworks that might be tagged "original work" because they don't fit into any specific, label-able fandom category. Some anthropomor-fic. Some gamerfic. Some filk. A lot of filk, actually. Meta written as a 2nd person POV story. Stories written in the style of an author, rather than using the characters & settings. And I don't draw (paint sculpt knit vid), but I know there are several types of art that might straddle that line.

I'm not writing about those. (Heh. Tangents, I said, right? I'm fond of tangents.) I'm writing about the concept of legality that's been brought up in a few places. It goes something like this: **If the AO3 hosts original fic, doesn't that weaken its claim of purpose of legal protection for fanfic?**

Disclaimer: I am not a lawyer, nor do I play one in an RPG. I am a copyfight activist, which means I read far too many court rulings about obscure points of copyright law, far too many blog posts by Doctorow and Lessig, and far too many forum discussions about DRM and torrenting. The most neutral statement I can probably make is: The media corporations who make millions selling creative content are not looking to enrich our culture as much as they're looking to line their own pockets. While that's not inherently an evil goal, it's also not inherently a sound legal or ethical foundation for their arguments.

Anyway. Back to the AO3 and "original" fic.

There are people who argue that most "fanfic" is not transformative, but merely derivative (those are technical, legal terms; I'm happy to babble about them, but it's info better gotten from a lawyer), unless it happens to be parody (also a technical term, and different from what a lot of people would expect). They claim that there's some nice, sharp literary difference between _The Wind Done Gone_ and _Pride and Prejudice and Zombies_ , vs _[The Very Secret Diaries](http://www.ealasaid.com/misc/vsd/)_ and _[War Games](https://archiveofourown.org/works/65014/chapters/85805)_ , which makes the former two legal and sellable and the latter part of a sordid hobby subject to the might of a Cease & Desist letter, or a DMCA takedown notice. (Except that they sometimes admit that VSD might qualify as legal parody, but since War Games is not funny, it doesn't.)

There is no such difference. There are, perhaps, legal boundaries involved—but those are based on lawyers' argument skills and corporate interests and judges' gullibility much more than any identifiable literary elements. ( _The Wind Done Gone_ is officially transformative; _60 Years Later: Coming Through the Rye_ is officially merely derivative.)

Fanworks take place in a continuum, and not a nice simple line, either. (This is where elf starts talking academic theories she really has no formal training or vocabulary for, so bear with me.) If we remove the "fandom" from the fanworks, they get easier to identify as part of an ancient literary tradition of playing with and building on the myths and stories of a culture.

Because I like making lists: A collection of types of "fanfic," ranging very very roughly from "least likely to be considered legally transformative" to "more/most likely." (IMHO. IANAL.)

  1. **Fan-written episode** : Canonical characters, setting, types of events, relationships; story focused on canonical types of actions.
  2. **Missing scene** : Hypothetical canonical events (possibly by canonical allusion) occurring in parts of canon that aren't described.
  3. **Futurefic/Pastfic** : Canonical characters & settings, before or after the canonical story. 
  4. **Change of PoV** : Canonical events described from a different perspective, often that of a minor character.
  5. **Relationship twist** : Fandom's long-time favorite—here's these two (or more) canonical characters; they should be having sex. Or at least getting romantic. 
  6. **Same world, different story** : Original characters or minor canonical characters in canonical settings, in canonically-plausible events. 
  7. **Crossover** : Characters from two or more canonical sources meet, often in a setting plausible for all of them. (NCIS investigates a murder at the Stargate institute. Merlin visits Shmendrick's traveling magician show. The Tardis gets stuck in the Liberator's teleporter.)
  8. **Secret History** : A major change of premise, generally based in the canonical universe and usually (somewhat) plausible within canon but obviously not intended by the creator(s). (Batman is a vampire. Buffy is a professional dominatrix. Mulder is working for the mob.)
  9. **And Then It Happened** : A major event occurring after/outside of canon. Similar to fan-written episode, except that the event isn't necessarily remotely possible within canon. (Aliens invade Hogwarts. The Trix rabbit eats some Trix and metamorphs into his next incarnation. Greg House moves to California and joins a hippie commune.)
  10. **AU after [event]** : A story that splits at some major canonical event (an episode, a death, a discovery, whatever)—a story that could not happen in canon, but seems plausible to many fans. (Boromir succeeds in taking the ring. Cyclops turned evil after Jean Grey died. Lennier, not Delenn, underwent the chrysalis transformation.)
  11. **AU from beginning** : A story that depicts major canonical events with an entirely different starting premise. (Kirk was a space pirate, not a Starfleet cadet. Captain Jack Sparrow was an ET scouting for an invasion. Genderswapped Sherlock Holmes.)
  12. **AU entirely** : Attempt to portray the characters, and sometimes draw parallels to canonical events, in a setting entirely different from canon. (Starsky & Hutch are starship captains. Luke Skywalker is a farmboy in post-WWI Nebraska. Xena is a lawyer in a modern law firm.)
  13. **Crackfic** : A premise so outlandish it's meant to be ridiculous. Generally only distinguishable from various AUs by story tone, although some people consider any wildly implausible premise to be crackfic. (James Bond gives ballet lessons to little girls. A computer virus turns the Terminator into a disco star. Edith Bunker gets superpowers, puts on a cape, and fights crime.)



We recognize all those as "fanfic." We recognize combinations of those as "fanfic." (Duncan McCleod the cyborg meets Dave Lister's grandson the wizard, and they fall in love and decide it's time to rid the universe of the Aliens.) But those aren't all the possible types of fics we have in fandom, especially where "fandom" gets much broader than tv/movie/book fans.

Gamers are fans, yes? (I think gamers are part of fandom.) Gamerfic doesn't tend to fall neatly into those categories. It's often sort-of Same World Different Story fic, where a canonical setting is used with original characters, but sometimes AU twists are thrown in (the Drow/Githyanki war never happened in Gygax's universe), and sometimes the world is an original creation designed within the constraints of the canonical ruleset. Is there a difference between D&D-based sword-and-sorcery stories, and generic "original fantasy" stories? A difference between a Cthulhu-verse story and an original tale of eldritch horrors? An author who wants to be certain of qualifying as "fanfic" can throw in a nod to canon—mention a cousin killed by a beholder or a summer internship at Miskatonic U—but aside from gratuitous canonical references, how could the lines be drawn? Does an author (artist vidder etc) *have* to throw in those references, or be ready to provide them on request if the fic (art vid etc) is challenged?

Should any pictures of Drow be allowed, or should they have to be named, specific Drow from TSR/WotC published works? How about spaceships—any spaceships are fanart, or only those identifiable (or at least declared) as connected to specific movies, books, tv shows or games? Are all orcs considered transformative because Tolkein invented them, or have they entered generic fanon and one could write about original orcs of no fandom?

Is filk a transformative work? It's fannish, but how much media-related content does it need to qualify for AO3's archive? A lot of filk is fannish concepts to known tunes, but not always specific-fandom concepts. Some is fannish concepts to original tunes. Would the lyrics to "[Dawson's Christian](http://www.ovff.org/pegasus/songs/dawsons-christian.html)" be acceptable at the AO3? [S-100 Bus](http://lyrics.wikia.com/Frank_Hayes:S-100_Bus), to the tune of Bonnie Ship the Diamond? How about "[Velveteen](http://www.ovff.org/pegasus/songs/velveteen.html)?" Certainly, the parodies of "Dawson's Christian" would be acceptable And "Velveteen" could be put in a hypothetical "Velveteen Rabbit –Margery Williams" fandom, but that seems like a very odd placement. S-100, the most obviously geeky and fannish of the three, might be excluded entirely. (Or it could very very weirdly be lumped under "traditional ballads" fandom, because it does work as a parody of Bonnie Ship the Diamond.) Would [The Livejournal Shanty](http://filkarchive.scrumpy.org/cgi-bin/song.cgi?FileID=349) be allowed as Webfandom, but [Hope Eyrie](http://www.prometheus-music.com/audio/hopeeyrie.mp3) not—or does it get put under RPF – NASA fandom?

RPF and historical fandoms both have a lot of grey areas that I barely know how to even think about. Would a "Hinkley succeeded in killing Reagan" story be fanfic? Would a story set today, in a world where he succeeded, be fanfic? If not—would a "John Stewart kills Obama in a jealous fit of rage over Stephen Colbert's infidelity" story be fanfic?

I'm digressing. A lot, because I love considering the line between "fanwork" and "original work," because we are *surrounded* by derivative and transformative creations, building on centuries of different "canonical" sources.

If [](http://jimhines.livejournal.com/profile)[**jimhines**](http://jimhines.livejournal.com/) wanted to post his new novel as a CC release at the AO3, would it be accepted as "Fairy Tales –Red Riding Hood" fanfic? If it's professionally published, does that change a work's fanficcy status? I think of Cory Doctrorow's _[Down and Out in the Magic Kingdom](http://www.craphound.com/down/)_ : a type of Disneyland fanfic (even if he'd never think of it that way). I sort-of consider _[Little Brother](http://www.craphound.com/littlebrother/)_ to be a form of _1984_ fanfic; the connection between them is obvious, but there's absolutely no shared canonical details. Parts of _Little Brother_ could potentially be hosted at the AO3 as "Web 2.0 fanfic." (AFAIK, Cory Doctorow has no interest in hosting his novels & short stories at the AO3. But there's no reason [Scroogled](http://craphound.com/?p=1902) *couldn't* be hosted there.)

(Looks like I've gotten pretty far from the "legal protections for fanworks" concept, doesn't it? I am moving in that direction. I promise.)

Part of the concept of "fair use" hinges on the basic premise that nothing is created in a vacuum. That we are influenced by what we read and watch and listen to, and that it's *good* to build new creative works with elements of those we have experienced before. That good creations, or the good pieces of lousy and forgettable creations, should live on in new forms. This applies to fiction and nonfiction works, but, since I'm looking at the OA3, I'm focused on fiction.

I think it strengthens the legal protections of fanfic to show it as part of a huge, messy tangle of literary approaches to various sorts of canon. It's easy to declare a fic about a hypothetical NCIS episode where McGee rescues DiNozzo from mobsters (and they fall madly in bed together) as "derivative;" it's harder when that fic is next to one about McGee visiting NCIS: Key West to help them keep those same mobsters from killing a bus full of tourists; even harder when an NCIS: Key West fic, full of just original characters, is all about the Conch Republic offering asylum to a suspect in a murder case. (And is the theme song for NCIS: Key West hostable on AO3?)

(Note to friends: No, I won't be writing any NCIS: Key West stories. I've never even been to Florida. Feel free to start a journal RPG about it. And someday, AO3's coders can have nightmares about how to archive interactive RPGs as fanfic.)

The difference between "transformative" (and fully legal as fair use) vs "merely derivative" (legal only with permission) is not defined anywhere. All we have to go on is a swarm of often-contradictory case rulings. Part of the reason I want future rulings to include fanfic—pretty much all of it—as "transformative," is that I perceive fanfic as part of a broad literary tradition of playing-with-canon, and don't believe that there's a nice neat line where it stops being "transformative fanwork" and becomes "original."

I don't want the AO3 to host "original" works. Don't want aspiring Harlequin Romance authors to upload their working drafts; don't want scriptwriters to dump their rejected scripts on the archive as BY-NC-SA in the hopes that they'll get noticed & hired to write something else. Don't want sci-fi short story writers to bombard the archive with several dozen "adam and eve" alternate terra-origin/creation stories.

And yet.

Those adam-and-eve stories are, loosely, bible fanfic. I'd rather include them than exclude the story of "David the time-traveler takes down renegade timejumper Goliath the with the last of his fusion power-packs, and gets stuck over a thousand years before he was born."

Hosting *those* stories can help show that "Harry Potter the time-traveler takes down Salazar Slytherin, gone mad after his creation of the time-turner, with an explosive portkey and gets stuck in the past" are also transformative, or at least of the same literary persuasion. The archive *not* making a judgment call between those is a way to say to the courts, "we don't recognize a difference between these kinds of stories. If you want to claim one is legal and another is not, someone else will have to draw those lines." Especially if that's the _same story_ as David above.

I want AO3 to host the full continuum of fanworks. I don't want them to stop with extra episodes or hidden secrets or obvious AUs. I want it to allow "fanworks" to include stories (& art vids etc; I say stories 'cos that's what I'm most familiar with) based on the world but without canonical characters, or based on the worlds of AU fanfics. I want it to allow songs inspired by multi-fandom fanon concepts—the sexy vampire in black leather pants, sex pollen, space pirates are greedy & stupid—without having to specifically name a canon source. I want it to allow scripts for "Foreman MD," a spinoff of House MD. I want it to allow fic about how Foreman's grandchildren change the way hospitals consider race when choosing employees. I want it to allow PWPs between Abe Lincoln and Robert E Lee. I want it to allow AU online RPG chat dialogs.

I want it to showcase all these things as part of its efforts to say, these are all legal fair uses when they connect to copyrighted material, and all works of artistic value in any case; they are part of an ancient literary folklore tradition, and are neither copyright infringement nor obscene.

The legal case for fanworks should be strengthened, not weakened, by showing "traditional" fanfic as one type (or several types) of literature in a broad field of inspired-by-something fics.

_Absolutely irrelevant side note: Apologies for the length of this. It really should be chopped into at least two different posts, and probably lose a third of its words, but (1) I don't have a nonfic beta reader and (2) husband is pressuring me to get off the computer and (3) I'm too lazy; it's been three days in the writing and I just want to get it posted._

**Author's Note:**

> Originally posted at <http://elf.dreamwidth.org/306328.html>, where there are comments.


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